The Case for Research

The Case for Research
Boston College’s Defense of the Belfast Project: A Renewed Call for a Researcher’s Privilege to Protect AcademiaFrank Murray

Boston College Law Student Frank Murray argues for a Constitutionally rooted researchers privilege in his law review note on the Belfast Project Case. This is a work in progress.

Abstract: Protecting the free exchange of ideas in academia, much like in journalism, has long been considered an American value and anecessary condition for a free and healthy democracy. The importance of academic autonomy, including the processes by which scholars collect, store and exchange information, is correspondingly of great importance to anyone happily living in a free society. Recent efforts by Boston College to fight the Federal government, acting on behalf of the United Kingdom to secure confidential and highly sensitive audio tapes collected and archived as part of an academic study, sheds new light on an ailment in American law. The tremendous legal challenge that Boston College has recently endured in its unsuccessful bid to protect academic sources is not only offensive to our social conscience, but on a more technical level stands in staunch contrast to cutting edge developments in international human rights law. Ironically, the subpoena request from the United Kingdom asks the United States to perform an act that would be of highly questionable legality under European law to which the United Kingdom is bound — Article 10 of the European Convention on Human Rights. If a researcher’s privilege is to be recognized in the United States, it will require the Supreme Court to recalculate, much like European courts have, the great societal value of scholarly research.

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The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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